Snodgrass v. Wetzel County Court
| Citation | 29 S.E. 1035,44 W.Va. 56 |
| Parties | SNODGRASS v. WETZEL COUNTY COURT. |
| Decision Date | 20 November 1897 |
| Court | Supreme Court of West Virginia |
Submitted June 11, 1897
Error to circuit court, Wetzel county; Thomas P. Jacobs, Judge.
Certiorari by R. E. L. Snodgrass to review the decision of the board of canvassers of Wetzel county that A. R. Thompson was elected clerk of the county court. From a decree in favor of Thompson, plaintiff brings error. Affirmed by divided court.
Robt. McEldowney, W. G. Snodgrass, C. A. Snodgrass, and H. P Camden, for plaintiff in error.
Basil T. Bowers, for defendant in error.
ENGLISH P.
On the 5th day of December, 1896, R. E. L. Snodgrass presented his petition, verified by his affidavit and accompanied by copies of four bills of exceptions, praying a writ of certiorari be awarded him directed to H. K. Cosgray, James Jolliff, and David Dulany, commissioners of the county court of Wetzel county, and ex officio a board of canvassers of election returns of said county, commanding them, as such board of canvassers, to bring into the circuit court of said county the proceedings in the matter of canvassing and recounting the votes of an election held for clerk of the county court of said county on the 3d day of November, 1896, in which election said Snodgrass was a candidate for said office, and Henry R. Thompson was the opposing candidate for said office which writ was awarded in pursuance of said petition, and made returnable on the 21st day of December, 1896. The principal fact relied on by the petitioner, R. E. L Snodgrass, in his application for the certiorari in this case, is that D. M. Poe and A. A. Merrifield, who acted as poll clerks in said election at precinct No. 1, in Grant district, of said county, divided the ballots provided by the ballot commissioners for that election precinct between them and each of said clerks took said ballots to his desk, and on the back of said ballots would write under the printed words "Poll Clerks" his own name, and also the name of the other poll clerk, and that said ballots upon which both poll clerks' names were so written were delivered by them to the voters as they came into the election room, and so voted by the voters of said precinct; that said arrangement for each poll clerk to write his own and the other poll clerk's name upon the back of said ballots was by agreement between said two poll clerks, and was known and consented to by the commissioners of election at that place; that each of said poll clerks was absent at times from the election room during the time that the polls were open, leaving the other clerk present; that neither of said commissioners nor poll clerks could say without an examination of each ballot that there were any ballots voted at said precinct upon the back of which each poll clerk wrote his own name; and that on the 10th day of November, 1896, while said board was proceeding to open the sealed packages of ballots laid before them by the clerk of the county court of said county returned from the several voting precincts thereof, and to count the number of ballots in each package so returned, the said clerk of the county court laid before said board a bunch of unsealed ballots purporting to be the ballots voted at said election at precinct No. 1 of Grant district of said county, and that the number of said ballots contained in said unsealed package, when counted by said board of canvassers, was ascertained to be 276. And the said board of canvassers, after counting the number of said ballots in each sealed and unsealed package laid before them from the several voting precincts in said county, proceeded to canvass the return of said election, and to ascertain the result t hereof from the face of the certificate returned from the several voting precincts in said county, and, the said board having reached the returns of said precinct No. 1 of Grant district, said Snodgrass objected to the board canvassing the returns from said voting precinct, and moved the court to reject the ballots and returns from said voting precinct, and not to include them in their ascertainment of the result of said election as to said office of clerk of the county court of Wetzel county, but to ascertain and declared the result of said election as to said office of clerk of the county court without including therein the said returns from said precinct No. 1 of Grant district, for the reason that on the back of each of the ballots voted at said voting precinct each poll clerk did not write his name under the words "Poll Clerk," and for other irregularities and defects as shown by the returns, and the condition of said unsealed ballots; which motion was overruled, and the board of canvassers opened the returns from said precinct No. 1 of Grant district, and found from the face of the returns that there were 276 votes in all cast at the precinct, and that said Snodgrass received at said precinct 101 votes, and that said Henry R. Thompson, for said clerk of the county court, received at said precinct for said office 142 votes, a majority in favor of said Henry R. Thompson of 41 votes; and on completing the canvass it was found by said canvassers that said Snodgrass received in all the precincts, including precinct No. 1 of Grant district, 1,994 votes, and Henry R. Thompson 2,020 votes for said office, a majority in favor of said Thompson of 26 votes. Said Snodgrass further claimed in his petition that during the recount said board of canvassers threw out and rejected 35 votes or ballots which should have been counted for him for the office of clerk of the county court, and counted for said Thompson 31 other votes or ballots which should have been thrown out and rejected and not counted for said Thompson, which 35 votes so rejected for said petitioner he requested and demanded said board of canvassers to count for him, but they refused his request, and rejected said 35 votes or ballots; and said 31 other votes which said board counted for said Thompson the petitioner moved to reject, but the board overruled the motion, and counted the 31 votes for Thompson for said office, to which action and ruling of said board in rejecting said 35 votes, and not counting them for petitioner, and to the action of said board in counting the 31 other votes for said Thompson, and in overruling petitioner's motion to reject them, said petitioner excepted, and the board of exceptions setting for the its rulings as to the rejection of said 35 votes, and as to its counting said 31 other votes, which are attached to and made part of said bill of exceptions and marked with letters for identification. Said Thompson also presented to said circuit court a petition for a writ of certiorari, setting forth therein his reasons for asking the same to the action of the board of canvassers in counting the votes at said election, which writ of certiorari was also awarded, and on the 26th day of December, 1896, the court proceeded to hear the causes together, regarding the petition in the second certiorari above mentioned as a cross assignment of errors, and held that the county court of Wetzel county, sitting as a board of canvassers of said election returns, committed no error to the prejudice of the petitioner in refusing to reject the 276 votes cast at (Big Run) precinct No. 1, in Grant district, in Wetzel county, and that in that particular their action was affirmed; to which ruling the petitioner excepted. The court further held that as to the action of said board in counting certain votes in the petition in the second cause mentioned, which ballots, with the objections thereto, are also mentioned and described in the petition in said first cause as well as in the records of the proceedings in both cases, the board of commissioners committed errors to the prejudice of both Henry R. Thompson and R. E. L. Snodgrass in the following particulars: (1) In refusing to count certain ballots for Thompson which they should have counted for him, and in counting certain ballots for said Snodgrass which they should not have counted for him. (2) In refusing to count certain ballots for said Snodgrass which they should have counted for him, and in counting certain ballots for said Thompson which they should not have counted for him.
The court, having before it as part of the record in these causes said original ballots, proceeded to inspect the same, to determine whether or not the same were properly disposed of by said board of canvassers, and designated by certain letters such ballots as should have been counted for Henry R. Thompson, and in the same manner designated what ballots should have been counted for R. E. L. Snodgrass, and also what ballots should have been entirely rejected, and directed the county court to correct their canvass in the manner thus indicated, and then to declare the result as to said office of clerk of the county court of Wetzel county. From this order th is writ of error was applied for and obtained.
The first error assigned and relied upon by the plaintiff in error is that it was error in the circuit court in not sustaining the motion first made before said board of canvassers to reject the ballots and returns from voting precinct No. 1 of Grant district, which motion is set forth in bill of exceptions No. 1, and was predicated upon the fact that the ballots from said precinct were returned to the clerk of the county court without being sealed up as required by statute, and were strung upon a string and placed in a ballot box, and were locked therein; and upon the further fact that, before the voting commenced at said precinct, part of the ballots for that precinct were taken by each of the poll clerks, and under the words "Poll Clerks," indorsed on the back of said ballots, each...
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